Wightman v. Progressive County Mutual Insurance Company et al

Filing 21

NOTICE AND ORDER DENYING 20 MOTION to Substitute 18 UNOPPOSED MOTION for Leave to File First Supplemental and Amending Complaint for Damages. Plaintiffs shall have seven (7) days from the date of this Notice and Order to file the Motion to Substitute. No further leave of court is necessary to file the Motion to Substitute. Signed by Magistrate Judge Erin Wilder-Doomes on 8/22/2017. (LLH)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
WILLIAM WIGHTMAN
CIVIL ACTION
VERSUS
NO. 16-595-BAJ-EWD
PROGRESSIVE COUNTY MUTUAL
INSURANCE COMPANY, ET AL.
Consolidated with
JENNIFER ZANAZZI
CIVIL ACTION
VERSUS
NO. 16-596-BAJ-EWD
PROGRESSIVE COUNTY MUTUAL
INSURANCE COMPANY, ET AL.
NOTICE AND ORDER REGARDING UNOPPOSED MOTION FOR LEAVE TO FILE
FIRST SUPPLEMENTAL AND AMENDING COMPLAINT FOR DAMAGES AND
MOTION TO SUBSTITUTE PLEADINGS
Before the court is: (1) an Unopposed Motion for Leave to File First Supplemental and
Amending Complaint for Damages (the “Motion for Leave”);1 and (2) a Motion to Substitute
Pleading (the “Motion to Substitute”)2 both filed by plaintiffs, William Wightman and Jennifer
Zanazzi (“Plaintiffs”).3
Per the proposed amending complaint,4 Plaintiffs seek to add “as additional defendants
herein Liberty Personal Insurance Company and Liberty Mutual Insurance Company.” 5 On
August 10, 2017, Plaintiffs were ordered to file a Motion to Substitute their proposed amending

1

R. Doc. 18.

2

R. Doc. 20.

3

On January 5, 2017, the two above-captioned cases were consolidated. See, Wightman v. Progressive County Mutual
Insurance Company, et al., United States District Court, Middle District of Louisiana, Civil Action No. 16-595
(“Wightman”), R. Doc. 10 & Zanazzi v. Progressive County Mutual Insurance Company, et al., United States District
Court, Middle District of Louisiana, Civil Action 16-596 (“Zanazzi”), R. Doc. 11.
4

R. Doc. 18-1.

5

See, R. Doc. 18-1, ¶ 1 & R. Doc. 20-2, § 1.

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complaint with a proposed pleading that was comprehensive.6 On August 16, 2017, Plaintiffs filed
the instant Motion to Substitute, and attached thereto a comprehensive proposed First
Supplemental and Amending Complaint for Damages.7
These consolidated cases were removed to this court on September 9, 2016 pursuant to 28
U.S.C. § 1332 based on complete diversity. The Notice of Removal in Wightman alleges that
William Wightman is domiciled in Louisiana.8 Similarly, the Notice of Removal in Zanazzi
alleges that Jennifer Zanazzi is domiciled in Louisiana.9 With respect to the individual defendant,
Sheldon Denard Mayo, the Notices of Removal allege that Mr. Mayo is domiciled in Texas.10
These are sufficient allegations of citizenship for the individuals named as parties. See, Mas v.
Perry, 489 F.2d 1396, 1399 (5th Cir. 1974) (“For diversity purposes, citizenship means domicile,
mere residence in the State is not sufficient.”).
With respect to the incorporated entities, in diversity cases involving corporations,
“allegations of citizenship must set forth the state of incorporation as well as the principal place of
business of each corporation.” Getty Oil, Div. of Texaco v. Ins. Co. of North America, 841 F.2d
1254, 1259 (5th Cir. 1988). Per the Notices of Removal, Progressive County Mutual Insurance
Company (“Progressive”), “is a foreign insurance company incorporated and having its principal
place of business in the State of Ohio.”11 Per Plaintiffs’ proposed substitute pleading, Liberty
Personal Insurance Company (“Liberty Personal”) is “a foreign insurer authorized to do and
actually doing business in the State of Louisiana” and Liberty Mutual Insurance Company

6

R. Doc. 19.

7

R. Doc. 20 & 20-2.

8

Wightman, R. Doc. 1, ¶ 1.

9

Zanazzi, R. Doc. 1, ¶ 1.

10

Wightman, R. Doc. 1, ¶ 3; Zanazzi, R. Doc. 1, ¶ 3.

11

Wightman, R. Doc. 1, ¶ 2; Zanazzi, R. Doc. 1, ¶ 2.

2

(“Liberty Mutual”) is “a foreign insurer authorized to do and actually doing business in the State
of Louisiana.”12 Assuming Liberty Personal and Liberty Mutual are corporations, these are not
adequate allegations of these entities’ citizenship because they fail to set forth Liberty Personal’s
and Liberty Mutual’s (1) state(s) of incorporation; and (2) principal place(s) of business.
Finally, with respect to TJ & DJ Trucking, LLC (“TJ & DJ”), the Notices of Removal
allege that TJ & DJ “is a Texas domestic limited liability company with its principal place of
business in Dallas, Texas.”13 Plaintiffs’ proposed substitute pleading provides only that TJ & DJ
is “a foreign limited liability corporation, licensed to do and doing business in the State of
Louisiana.”14 To properly allege the citizenship of a limited liability company, a party must
identify each of the members of the limited liability company and the citizenship of each member
in accordance with the requirements of § 1332(a) and (c). See, Harvey v. Grey Wolf Drilling Co.,
542 F.3d 1077, 1080 (5th Cir. 2008). The same requirement applies to any member of a limited
liability company which is also a limited liability company. See, Turner Bros. Crane and Rigging,
LLC v. Kingboard Chemical Holding Ltd., Civil Action No. 06-88, 2007 WL 2848154, at *4-5
(M.D. La. Sept. 24, 2007) (“when partners or members are themselves entities or associations, the
citizenship must be traced through however many layers of members or partners there may be, and
failure to do [sic] can result in dismissal for want of jurisdiction.”) (quotation and citation omitted).
Accordingly, the citizenship of TJ & DJ has also not been properly alleged.
IT IS HEREBY ORDERED that Plaintiffs’ Motion to Substitute Pleading15 is DENIED
without prejudice to Plaintiffs’ right to file a Motion to Substitute Pleading which attaches a

12

R. Doc. 20-2, ¶ 1.

13

Wightman, R. Doc. 1, ¶ 4; Zanazzi, R. Doc. 1, ¶ 4.

14

R. Doc. 20-2, ¶ 1.

15

R. Doc. 20.

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comprehensive proposed amending complaint that properly alleges the citizenship of each party.
Specifically, the proposed amending complaint must allege: (1) the status of Liberty Personal and
Liberty Mutual (i.e., whether these entities are corporations or unincorporated associations); and
(2) the citizenship of Liberty Personal, Liberty Mutual, and TJ & DJ pursuant to the requirements
set forth herein. If an entity is a corporation, the proposed amending complaint must allege that
entity’s state of incorporation and principal place of business. If an entity is an unincorporated
association such as a limited liability company, the proposed amending complaint must allege the
members of the entity and each members’ citizenship. Plaintiffs shall have seven (7) days from
the date of this Notice and Order to file the Motion to Substitute. No further leave of court is
necessary to file the Motion to Substitute.
Signed in Baton Rouge, Louisiana, on August 22, 2017.

S
ERIN WILDER-DOOMES
UNITED STATES MAGISTRATE JUDGE

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